3 Operation of the devolved institutions
and elections
(clauses 3 to 9)
Operation of the Scottish Parliament
and Government (clause 3)
Policy
71. The Smith Commission Agreement provided that
the Scottish Parliament would be granted powers "to make
decisions about all matters relating to the arrangements
and operations of the Scottish Parliament and Scottish Government,
including:
· powers over the overall number of MSPs
or the number of constituency and list MSPs.
· powers over the disqualification of MSPs
from membership and the circumstances in which a sitting MSP can
be removed."[90]
72. Draft clause 3 "provides for the Scottish
Parliament to have powers on matters relating to the operation
of"[91] the devolved
institutions, with a number of exceptions listed.
Implementation
73. Professor Douglas-Scott told us that the clause
was "very confusingly drafted".[92]
It was described to us by Mr Clancy as "a bit of a thicket"[93]
and by Dr Hepburn as "quite impenetrable",[94]
with, as Professor McHarg put it, "exceptions to exceptions
to exceptions".[95]
However, as Mr Clancy told us, "it is quite difficult to
see how one could amend it in a particular way to make it more
readable other than rewriting big chunks of the Bill and the existing
Act."[96] Nobody
told us in evidence of any serious unworkability in the clause
as drafted.
Super-majority (clause 4)
Policy
74. Under clause 4, power over the following in respect
of the Scottish Parliament (competence regarding which is devolved
by other draft clauses considered here) can only be exercised
if a "super-majority" (i.e. at least two-thirds
of all MSPs) is obtained:
· the franchise;
· the system by which members are elected;
· the number of constituencies and number
of regions; and
· the number of regional members to be returned
for each region.
75. This provision has met with support from many
of our witnesses[97]
on the grounds that its purpose is to ensure a broad consensus
of support for any proposed changes and to reduce the risk of
"gerrymandering" to the advantage of any particular
political party.[98]
76. It was suggested to us that requiring a two-thirds
majority was an appropriate way of ensuring cross-party agreement
on the issues to which it applies. Professor Michael Keating told
us that:
a two-thirds majority would make it virtually impossible
for any conceivable single party to change the electoral system
in Scotland. One can imagine a single party getting two thirds,
but it really is highly unlikely, given the proportional system.
This guarantees that there must be cross-party agreement and that
one single party is not able to abuse this power.[99]
77. Professor Douglas-Scott also pointed out the
super-majority is particularly pertinent as the unicameral Scottish
Parliament lacks the check provided by the existence of a second
chamber.[100]
78. We were told by one group that in relation to
devolved powers over elections, given the lack of a second chamber,
"[e]very power transferred should require a super majority
to be altered".[101]
We have not widened the ambit of our inquiry to consider whether
the Smith Commission Agreement should have gone further in its
requirement for a super-majority (except in relation to electoral
boundariessee below). However, we note the views expressed
to us,[102] and we
did seek to clarify why the Scotland Office has drawn the line
where it has. The Minister explained to us that the issues to
which the requirement for a super-majority would apply are the
"most fundamental", "the issues that are of the
most significance to an election and changes to the current arrangements
for the Scottish Parliament", but not issues "around
the administration of elections".[103]
Implementation
79. Professor McHarg suggested to us that the super-majority
requirement could be circumvented by means of a request to the
UK Parliament to act (if the political composition of both Parliaments
coincided sufficiently).[104]
She described this as a "loophole"; it appears to be
an inevitable consequence of the sovereignty of the UK Parliament.
Any administration in Scotland seeking to circumvent the super-majority
requirement by an appeal to Westminster would of course need to
secure the consent of the Scottish Parliament to Westminster legislation,
and would have to face the political consequences.
Administration and conduct of
elections (clause 5)
Policy
80. Clause 5 aims to devolve to the Scottish Parliament
full legislative and executive competence in relation to conduct
of elections to the Scottish Parliament (but not in relation to
UK Parliament or European Parliament elections).[105]
Executive competence in this regard is already due to be devolved
to the Scottish Government under the Scotland Act 2012 and the
Scottish Parliament already has legislative competence in relation
to the administration and conduct of Scottish local government
elections.
81. There are some important exceptions:
· the Scottish Parliament will have no powers
over the regulation of political parties (including donations);
and
· general elections to the Scottish Parliament
cannot be held on the same day as UK general elections (except
"early" general elections), European Parliament general
elections, or ordinary local government elections in Scotland
(the polls must be two to six months apart).
82. Under clause 4, any changes to the voting system
will require a two-thirds super-majority to be obtained. This
protects against the possibility that such changes could be enacted
for the benefit of one political party and without a broader basis
of support.
Implementation
83. We were not told by witnesses of any shortcomings
in the drafting of this clause.
The franchise (clause 6)
Policy
84. Clause 6 aims to devolve to the Scottish Parliament
legislative competence in relation to the franchise for elections
to the Scottish Parliament and Scottish local government (but
not in relation to UK Parliament or European Parliament elections).[106]
85. Under clause 4, any changes to the franchise
will require a two-thirds super-majority. Here again, this provides
an important safeguard against changes that might otherwise be
enacted for the benefit of a particular political party and without
a broad consensus of support.
Implementation
86. The clause appears to implement the policy set
out in the Smith Commission Agreement and the Command Paper, and
we have received no evidence to suggest otherwise.
87. Devolution of the power specifically to reduce
the voting age to 16 for elections to the Scottish Parliament
and Scottish local government is being carried out through an
Order in Council under section 30 of the 1998 Act. The Scotland
Act 1998 (Modification of Schedules 4 and 5 and Transfer of Functions
to the Scottish Ministers etc.) Order 2015 was laid before Parliament
on 21 January 2015 and approved by the House of Commons on 2 February
2015[107] and by the
House of Lords on 26 February 2015. [108]
88. Professor Keating told us that there was consensus
in Scotland in favour of the change to the voting age: "I
suspect that this is an idea whose time has come".[109]
By using a section 30 Order the Government says it will be possible
for the change to take place in time for the Scottish Parliament
elections in 2016 and the Scottish local authority elections in
2017.[110] Mr Mundell
told us "There was a view expressed by the Scottish Government
and a cross-party view in the Scottish Parliament that this issue
was a priority and should be taken forward separately" from
the proposed Bill.[111]
89. It might be argued that it is inappropriate to
bring about such a change through secondary legislation, which
Parliament can accept or reject but not amend;[112]
Professor Douglas-Scott told us that giving the vote at such a
young age is very unusual internationally.[113]
It is, however, the devolution of this decision that is being
expedited under the section 30 Order, not the decision itself:
as Professor Keating explained to us, the decision is not being
taken through secondary legislation and there will still be a
parliamentary process at Holyrood.[114]
90. Although the decision will only affect the franchise
for Scottish elections, it may set a precedent for the rest of
the UK. The House of Lords Select Committee on the Constitution
has recently observed that the Scottish Parliament is likely to
use its new powers in order reduce the voting age for Scottish
Parliament and Scottish local government elections and this "may
lead to pressure for similar changes to the franchise in the other
devolved territories", and in turn to the franchise for UK
parliamentary elections.[115]
The Government's recent proposals for further devolution to Wales
envisage that the National Assembly for Wales should in future
decide the franchise for Assembly elections, including the ability
to lower the voting age to 16 if it wishes.[116]
Though regarding the section 30 route as "preferable",
Professor Douglas-Scott suggested to us that the opportunity for
debate might be lost.[117]
Certainly, once implemented for the Scottish Parliament and Scottish
local government elections, any debate in the UK Parliament about
the principle of 16- and 17-year-olds voting in, for example,
general elections seems likely to be against a landscape in which,
for a substantial section of the electorate, a voting age of 16
for certain elections is regarded as the norm. Yet, as Professor
Keating told us, Westminster is "not obliged to do it just
because the Scottish Parliament has decided to do it".[118]
The Minister observed that when the debate was held in relation
to the Order he did not think it took up the full allocated time.[119]
As he said, there "needs to be wider debate and discussion
in other parts of the United Kingdom", and "the experience
in Scotland is something that people in the rest of the UK can
reflect on."[120]
We ourselves have called for a motion on allowing votes at 16
for Westminster elections to be debated in the 2015 Parliament,
as a precursor to possible legislation.[121]
91. We note that the Order does not require the Scottish
Parliament to enact any change to the voting age only by a super-majority,
as will be the case once the draft clauses are enacted.[122]
Mr Mundell's evidence to us was that a super-majority was not
required "because it had been agreed among the five parties
as part of the Smith process and all the five parties had agreed
that that would form the shape of the franchise of the Scottish
Parliament going forward".[123]
In view of the current consensus on the point it is arguable little
would be achieved by requiring such a majority.
Political campaign expenditure
(clause 7)
Policy
92. Clause 7 aims to devolve to the Scottish Parliament
legislative competence over campaign expenditure and controlled
expenditure in relation to elections to the Scottish Parliament
(except in relation to certain combinations of elections).[124]
The Scottish Parliament already has legislative competence in
relation to rules on campaign expenditure relating to Scottish
local government elections. As noted above, the regulation of
donations to political parties remains a reserved matter.
Implementation
93. We have received no observations directed to
the policy or drafting of this clause, save that Professor McHarg
described the reasons for not devolving powers over regulation
of parties and donations to them as "fairly obvious".[125]
Given that political parties generally operate across the UK,
it may well be most appropriate that they should be regulated
uniformly throughout the UK.
Electoral Commission (clause
8)
Policy
94. Clause 8 aims to devolve to the Scottish Parliament
legislative competence over the functions of the Electoral Commission
with respect to elections to the Scottish Parliament.
95. At present, the Scottish Government must reimburse
the Commission for expenditure incurred in relation to Scottish
local government elections.[126]
There was no express provision in the Smith Commission Agreement
about meeting the cost of the Electoral Commission's functions
with respect to Scottish Parliament elections and the draft clauses
make no provision. We have not had an opportunity to investigate
this fully, but it seems to us an important issue.
Implementation
96. Draft clause 8 appears to implement the policy
in the Command Paper, and no evidence before us has criticised
the policy or its proposed implementation.
Boundary Commission for Scotland
(clause 9)
Policy
97. Clause 9 seeks to devolve to the Scottish Parliament
legislative competence in relation to functions of the Boundary
Commission for Scotland relating to Scottish Parliament boundaries,
and to amend the 1998 Act so that the Commission would report
to the Scottish Ministers (who would be required to lay the reports
before the Scottish Parliament). It also (though this is not expressly
referred to in the Command Paper's explanation of the clause)[127]
devolves legislative competence in relation to the number of constituencies,
regions and regional members (but not the specification of constituencies
or regions). The Smith Commission agreed that the Boundary Commission
for Scotland would continue to operate as a UK public body and
would report to the Scottish Parliament in relation to boundary
reviews for the Scottish Parliament.[128]
The Command Paper says that the Commission will continue to have
functions in relation to UK Parliament constituency boundaries.
98. Under clause 4, modification of the law relating
to the number of constituencies, regions, and regional members
is subject to the requirement for a two-thirds super-majority,
providing a safeguard against changes to those matters for the
benefit of a particular political party without a broad consensus
of support.
Implementation
99. Professor Douglas-Scott described having an initial
reservation about the devolution to the Scottish Parliament of
the decision whether to adopt recommendations of the Boundary
Commission for Scotland, as it was not clear to her whether there
was scope for the Scottish Government to amend a report of the
Commission. However, she could see no real room for abuse in the
area.[129]
100. Professor McHarg told us that the existence
of a commission which would remain a UK body could be seen as
providing some safeguard against potential gerrymandering.[130]
101. Professor McHarg told us that boundary changes
were not covered by the requirement for a two-thirds majority.[131]
Professor Loveland described this as "perhaps very unfortunate".[132]
He told us: "It seems to me constituency boundaries are an
extremely important part of the electoral system and my inclination
again would be they are important enough that they should be subject
to this higher degree of protection."[133]
It might further be argued that the amendments[134]
may give the unicameral Scottish Parliament, at the instance of
the Scottish Government, the power to adopt an unchallengeable[135]
Order in Council purporting to implement the Commission's recommendations
about Scottish Parliament boundaries. In the UK Parliament such
Orders must be approved by both Houses of Parliament.[136]
Although we have not had the opportunity to explore more fully
the implications of the proposed procedures for boundary changes,
there appears to be a case for further consideration of additional
safeguards such as the need for a super-majority in the Scottish
Parliament for any such changes.
Our view
102. Draft clauses 3 to 9 largely deliver as promised
in the Command Paper in implementing the Smith Commission Agreement,
but we recommend further consideration be given to their detailed
drafting.
103. The drafting of clause 3 is confusing. As
we were told, it is "a bit of a thicket". We recommend
that it be re-drafted if possible to clarify its effect.
104. The super-majority requirement contained
in clause 4 is desirable and appears to implement the Smith Commission
Agreement. It may be appropriate to extend the devolved powers
to which it applies, but we do not make any recommendations about
that.
105. The cost of meeting the Electoral Commission's
functions in relation to Scottish Parliament elections as devolved
to the Scottish Parliament by draft clause 8 was not dealt with
by the Smith Commission Agreement. We invite the Government to
consider this.
106. Given the unicameral nature of the Scottish
Parliament, we invite the Government to consider whether some
additional safeguard (such as a super-majority requirement) should
be introduced to the process, amended by draft clause 9, for implementing
recommendations of the Boundary Commission for Scotland about
Scottish Parliament boundaries.
90 Report of the Smith Commission for the future devolution of powers to the Scottish Parliament,
November 2014, para 26 (emphasis added) Back
91
Cm 8990, para 1.3.1 (emphasis added) Back
92
Q68 Back
93
Q20 Back
94
Q70 Back
95
Q20 Back
96
Loc. cit. Back
97
It was described to us by the Royal Society of Edinburgh and the
British Academy as "welcome and desirable particularly for
decisions relating to the electoral system for the Scottish Parliament
as proposed by the Draft Clauses"-Royal Society of Edinburgh
/ British Academy (DSB 09) para 30-and by Professor Tom Mullen
as "in principle, desirable"-Prof Tom Mullen (DSB 11).
See also Qq28 [Prof I Loveland, Dr M Elliott], 39 [Mr W Sullivan,
Mr D Torrance, Ms J Swann] 69, 70 [Dr E Hepburn] and 76. Back
98
Q39 [Mr D Torrance]. See also Q28 [Prof I Loveland] and Qq76-77. Back
99
Q76 Back
100
Q70 Back
101
United Against Separation (DSB 10) Back
102
See also Qq20 [Prof I Loveland] and 28 [Prof I Loveland, Dr M
Elliott] Back
103
Oral evidence taken on 3 March 2015, HC (2014-15) 700-ix, Q535 Back
104
Q20 Back
105
Cm 8990, para 1.4.1 Back
106
Cm 8990, para 1.4.5 Back
107
HC Deb, 2 February 2015, col 98 Back
108
HL Deb, 26 February 2015, col 1798 Back
109
Q79 Back
110
Cm 8990, para 1.1.4 Back
111
Oral evidence taken on 3 March 2015, HC (2014-15) 700-ix, Q539 Back
112
House of Lords, Draft Scotland Act 1998 (Modification of Schedules
4 and 5 and Transfer of Functions to the Scottish Ministers etc.)
Order 2015, Ninth Report of the Select Committee on the Constitution,
Session 2014-15, HL Paper 119, paras 13-15 Back
113
Q79 [Prof Douglas-Scott] Back
114
Q79 Back
115
House of Lords, Draft Scotland Act 1998 (Modification of Schedules
4 and 5 and Transfer of Functions to the Scottish Ministers etc.)
Order 2015, Ninth Report of the Select Committee on the Constitution,
Session 2014-15, HL Paper 119, paras 8-9 Back
116
Wales Office, Powers for a Purpose: Towards a lasting devolution
settlement for Wales, Cm 9020, February 2015, para 2.2.15.
The Assembly already has the power to lower the voting age to
16 for a referendum on devolving income tax powers. Back
117
Q79 Back
118
Loc. cit. Back
119
Oral evidence taken on 3 March 2015, HC (2014-15) 700-ix, Q536 Back
120
Oral evidence taken on 3 March 2015, HC (2014-15) 700-ix, Q537 Back
121
Political and Constitutional Reform Committee, Sixth Report of
Session 2014-15, Voter engagement in the UK: follow-up, HC 938,
para 102 Back
122
House of Lords, Draft Scotland Act 1998 (Modification of Schedules
4 and 5 and Transfer of Functions to the Scottish Ministers etc.)
Order 2015, Ninth Report of the Select Committee on the Constitution,
Session 2014-15, HL Paper 119, para 19 Back
123
Oral evidence taken on 3 March 2015, HC (2014-15) 700-ix, Q538 Back
124
Cm 8990, paras 1.4.7-1.4.8 Back
125
Q26 Back
126
Political Parties, Elections and Referendums Act 2000, section 13A Back
127
Cm 8990, para 1.4.10 Back
128
Report of the Smith Commission for the future devolution of powers to the Scottish Parliament,
November 2014, para 24(3) Back
129
Qq71-72 Back
130
Q30 Back
131
Q29 Back
132
Loc. cit. Back
133
Loc. cit. Back
134
The amendments to Sch 1 para 6 of the 1998 Act, effected by draft
clause 9. That paragraph in its unamended form largely mirrors
the Parliamentary Constituencies Act 1986, section 4. Back
135
Paragraph 6(8) of Sch 1 says the validity of an Order in Council
purporting to be made under the Schedule, reciting it has been
approved by the Scottish Parliament, may not be called in question
in any legal proceedings. Back
136
Parliamentary Constituencies Act 1986, section 4 Back
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